E-Discovery Alert

2009 WL 1025223 (M.D. FL October 28, 2009)

In-house counsel at Sheriff's office was sanctioned for attorney's fees for his failure to take adequate steps to implement a litigation hold.

Sheriff's deputies were involved in a shooting. The victim of the shooting sued the Sheriff’s Department, alleging excessive force. Before filing suit, the Plaintiff's attorney sent two letters requesting that evidence associated with the case be preserved. The in-house counsel copied the letters and sent them to senior employees but took no other action. The letter was not sent to deputies involved in the shooting. Sheriff's office had no records retention plan. Ultimately all the data on one of the deputies' laptops was destroyed as well as other evidence including potentially relevant emails. The Plaintiff moved for sanctions for spoliation. The court ordered that there be adverse jury instructions regarding the destroyed evidence. The court also ordered that the Plaintiff be awarded attorney fees that were to be apportioned between all three defendants and Sheriff’s Office in-house counsel .Quoting Zubulake, the court said, “It is not sufficient to notify employees of a litigation hold and expect that the [employee] will then retain and produce all relevant information. Counsel must take steps to monitor compliance so that all sources of discoverable information are identified and searched."

Sonomedica v Mohler

2009 WL 2371507 ( E.D. VA July 28, 2009)

Non-party witness was sanctioned for destruction of electronic evidence after being ordered to turn over computer.

During the course of discovery, the court ordered non party witnesses to turn over their computer without touching it except to turn it off. The witnesses had already failed to comply with an earlier court order requiring them to produce documents relevant to the litigation. They had also been less than truthful at deposition. When the witnesses did turn over their computer, it was discovered that they had manually deleted 556 files. The court found them in contempt and ordered them to pay over $100,000 in attorney’s fees. The court also referred their actions to the United States Attorney for criminal contempt proceedings.

Bray & Gillespie Mgmt. LLC v. Lexington
2009 WL 546429 (M.D. FL March 4, 2009)

Rule 37 does not require that the court find that a party acted in bad faith before imposing sanction, unless the sanction is dismissal or default.

Parties were involved in an insurance coverage dispute. Lexington made a request for production asking for electronically stored documents in their native format with metadata. Without objecting to the format requested by Lexington, B& G eventually produced the documents in a Tiff format. Even after Lexington's motion to compel the material in native format, B & G failed to object to the format requested by Lexington. After noting that Rule 37 does not require the court to find that a party or its counsel acted willfully or in bad faith before imposing Rule 37 sanctions, unless the sanction is dismissal of the complaint or entry of a default judgment, the court found that B& G was remiss in carrying out its discovery responsibilities. It required B& G to allow Lexington's computer expert direct access to specified B & G databases. The court also extended the time for discovery for Lexington only.

The cases obtained from Westlaw were reprinted with permission from ThomsonReuters.